DPP v Gormley

• Jurisdiction: Ireland
• Judgment Date: 04 March 2010
• Date: 04 March 2010
• Docket Number: [C.C.A. No. 20 of
• Court: Court of Criminal Appeal

[2010] IECCA 22,

Court of Criminal Appeal

[C.C.A. No. 20 of 2008]

The People (Director of Public Prosecutions) v. Gormley

The People (at the suit of The Director of Public Prosecutions)

Prosecutor

and

Raymond Gormley

Accused

Cases mentioned in this report:-

The People (D.P.P.) v. Conroy [1986] I.R. 460; [1988] I.L.R.M. 4.

The People (Director of Public Prosecutions) v. Healy[1990] 2 I.R. 73; [1990] I.L.R.M. 313.

The People v. Madden [1977] I.R. 336; (1977) 111 I.L.T.R. 117.

The People (Director of Public Prosecutions) v. O'Brien [2005] IESC 29, [2005] 2 I.R. 206.

The People v. Shaw [1982] I.R. 1.

Criminal law - Constitution - Detention - Access to legal advice - Reasonable access - Whether breach of constitutional right to reasonable access to legal advice - Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (S.I. No. 119).

Application for leave to appeal

The facts have been summarised in the headnote and are more fully set out in the judgment of the Court of Criminal Appeal delivered by Finnegan J., infra.

The applicant was convicted of attempted rape by the Central Criminal Court (Carney J. and a jury) and sentenced on the 15th January, 2008.

On the 4th February, 2008, the applicant lodged a notice of application for leave to appeal against both conviction and sentence.

The application for leave to appeal against conviction was initially heard by the Court of Criminal Appeal (Finnegan, Hanna and Charleton JJ.) on the 2nd March, 2009. Judgment was delivered on the 27th July, 2009 (see [2009] IECCA 86). It was submitted that this judgment did not address the issue of reasonable access to a solicitor. Further submissions were heard in respect of this point on the 11th February, 2010.

The applicant was arrested on a Sunday and brought to the garda station where he arrived at 2 p.m. where he was informed of his entitlement to legal advice. At 2.15 p.m. he nominated two solicitors with either of whom he wished to speak. The gardaí did not have a mobile or home number for either solicitor. A garda car was dispatched immediately to attempt to secure the attendance of one of the solicitors. At 3.05 p.m. the solicitor made contact with the gardaí by telephone and stated that he would be there either shortly after 4 p.m. or as soon as he possibly could thereafter. The solicitor did not ask to speak with the applicant. The first interview with the applicant commenced at 3.10 p.m. and ended at 4.46 p.m. The solicitor arrived at 4.48 p.m. and was immediately admitted to a private room where he conducted a consultation with the applicant. A second interview was carried out thereafter.

The applicant was subsequently convicted of attempted rape. The applicant applied for leave to appeal against conviction and sentence on the ground that the trial judge had erred in admitting statements made by the applicant in interview prior to the arrival of the solicitor to the garda station, arguing that there had been a breach of the applicant's constitutional right to access to legal advice.

Held by the Court of Criminal Appeal (Finnegan, Hanna and Charleton JJ.), in refusing leave to appeal against conviction, 1, that the right of a person in detention to independent legal advice was well established and extended to ensuring that a person in detention was aware of that right. The right to independent legal advice was constitutional in origin and meant that in the event of the arrival of a solicitor, the person had an immediate right to be told of the arrival of the solicitor and, if he requested it, immediate access to the solicitor.

The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73 applied.

2. That the circumstance of a solicitor being requested by a person in detention did not require an interview to be discontinued. However, once a solicitor arrived at the garda station, the person in detention must be given immediate access.

The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73; The People v. Shaw[1982] I.R. 1 and The People (D.P.P.) v. Conroy[1986] I.R. 460 applied.

3. That the gardaí were not obliged to wait an indeterminate time after the applicant sought a solicitor to allow for a solicitor to arrive at the garda station. What might be a reasonable time was capable of infinite variation. What was important was that the gardaí informed a person in detention of his right to legal advice and did what was reasonable in assisting him in securing such advice and they did not engage in colourable stratagems to defeat the enjoyment of his constitutional right.

The People v. Madden [1977] I.R. 336 followed.The People (Director of Public Prosecutions) v. O'Brien[2005] IESC 29, [2005] 2 I.R. 206 considered.

4. That where the right of access to legal advice in garda custody was thwarted through deliberate refusal or colourable manoeuvres to ensure that the right was undermined, there was a breach of the person in detention's constitutional right in failing to provide the person with a solicitor within a reasonable time. The detention became unlawful from the moment the decision to thwart the person in detention's right was made and the statements made by a person in detention pending the arrival of his solicitor were inadmissible whether there had been an undue...